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C O N F I D E N T I A L SECTION 01 OF 06 BRUSSELS 000219
NOFORN
SIPDIS
STATE FOR IO, EEB, S/CT, S/P, EUR, L, AF, EAP
TREASURY FOR TFI
JUSTICE FOR CIVIL DIVISION
E.O. 12958: DECL: 02/24/2020
TAGS: BEXPBMEAIREFINETTCEUNEWWTKJUSKNKNNP
KTFN, PINR, PTER, SO, UNSC, ZI, ER
SUBJECT: U.S. - EU SANCTIONS INFORMAL
REF: A. 2009 BRUSSELS 1524
¶B. 2010 BRUSSELS 35
¶C. 2009 BRUSSELS 101
¶D. 2010 BRUSSELS 197
¶E. 2009 BRUSSELS 616
¶F. 2009 BRUSSELS 493
BRUSSELS 00000219 001.2 OF 006
Classified By: USEU EconMinCouns Peter Chase for reasons 1.4 (b) and (d
).
¶1. (C//NF) SUMMARY. On February 3, an interagency
delegation held an off-the-record roundtable discussion on
sanctions issues with Spain (current EU Presidency) and the
EU institutions. Topics included legal challenges to
sanctions regimes, innovations to UN and EU counterterrorism
programs, data privacy, North Korea, Zimbabwe, Burma,
Eritrea, and Somalia. EU representatives welcomed changes to
the UN 1267 (Al-Qaeda and Taliban) sanctions program made by
UNSCR 1904, noting the updated EU Regulation implementing
those measures. But they indicated some uncertainty
concerning future EU implementation of UN 1267 sanctions,
given the ongoing designation challenges before EU courts and
an anticipated lawsuit by which the European Parliament would
assert co-equal authority over legislative design and program
implementation. With respect to EU sanctions programs
pending annual renewal, EU representatives previewed the
rollover of EU sanctions against Zimbabwe, which they
expected to include the de-listing of certain individuals and
entities. They also said that EU sanctions against Burma
would be renewed in April, but that it was too soon to
determine whether any modifications to that program would be
made. EU targeted sanctions are approaching a sliding scale
for due process standards and noFebru
renewed.
Q other EU Member States, Torres-Dulce informed the
delegation that the Spanish Presidency would remain in
listening mode on specific sanctions policies. He then
offered some general commentary, describing the impact of the
Lisbon Treaty in the sanctions domain. From April onward,
the EU will begin establishing various components of its
nascent diplomatic corps, the External Action Service
("EAS"). The EAS should create synergies for certain
sectors, including sanctions. His personal view is that
Lisbon represents a push toward common European structures
and that the EAS will probably increase "structural
stability" on many External Relations fronts. Spain is
sensitive to the precedents that it is overseeing during its
Presidency tenure and is moving cautiously on all post-Lisbon
matters for which there is no EU case law.
BRUSSELS 00000219 002.2 OF 006
--------------------------------------------- ---
LEGAL CHALLENGES TO UN AND EU TARGETED SANCTIONS
--------------------------------------------- ---
¶4. (SBU) EU staffers explained that the European Court of
Justice ("ECJ") would have new sanctions-related authorities
under the Lisbon Treaty. Although there is no established
case law for these areas, staffers highlighted that the Court
would have jurisdiction on all issues concerning the rights
of the individual. All targeted sanctions will therefore be
considered under the purview of the Court under the EU's
revised treaty structure.
¶5. (C//NF) EU staffers said that UNSCR 1904 was "very
welcome" in the EU, but argued that more could potentially be
done to strengthen procedural safeguards in the UNSCR 1267
program. EU courts may demand that due process standards for
autonomous EU counterterrorism (i.e., UNSCR 1373)
designations apply to UNSCR 1267 or other sanctions programs
implemented in the European Union. Commission and Council
lawyers are currently asserting the opposite to the courts
(namely that internal EU/UNSCR 1373 standards should not
apply in all cases). But, absent formal jurisprudence, they
are only guardedly optimistic about the strength of their
arguments. Based on formal legal opinions and informal
feedback, staffers understand the courts to be saying, "what
does it cost you to enhance the rights of the individual,"
Commission and Council staffers warned.
¶6. (C//NF) EU sanctions are approaching a sliding scale for
due process standards and norms. Council and Commission
lawyers are particularly concerned that the ECJ will find
"manifest error" in (and seek to review information
underlying) listing decisions made by the UN Security
Council. EU lawyers are telling the EU courts to "back off"
of UN Security Council prerogatives and argue that the
intensity of EQcourt review should vary across the diverse
spectrum of sanctions programs.
¶7. (C//NF) According to Council Secretariat lawyer Richard
Szostak, "one area of high risk" involves cases under active
review in European courts for which tQ EU institutions have
little or no information supporting UN sanctions
designations. Szostak cited the Al Faqih case, which will
close for filings on February 25. He says that the UN has
not provided a statement of case and that the EU currently
has no other information with which to defend itself.
According to Szostak, the EU finds itself in similar
situations with respect to multiple cases concerning UN
designations (i.e., UN reference numbers: QI.A.181.04,
QE.M.120.05, QI.A.198.05, QI.K.214.06, QE.L.11.01, and
QE.L.118.05), all of which are being defended by good
lawyers. For Council and Commission lawyers, it is crucial
that UN statements of case include facts and not look like
hearsay. This is particularly true because the EU does not
re-process or add information to documents that it receives
from the UN (REF A/Para 9).
¶8. (C//NF) EU staffers explained the EU's internal "review"
of UNSCR 1267 terrorism designations, as recently codified in
the implementing Council Regulation (EU) No 1286/2009 (REFS
A/Para 8, B/Paras 2-5). One Commission staffer asserted that
an EU-level review of Security Council designations is not
inconsistent with the UN Charter. He said that UN Member
States should be regularly updating information concerning
sanctions targets, noting that UNSCR 1822 had introduced
concepts and tools that the EU was simply putting into
practice. "UNSCR 1904 might not be enough, but all of the
tools are there," he stated. He and other EU staffers agreed
that the combination of procedural innovations from UNSCR
1822 and UNSCR 1904 "should be enough" to prevent EU courts
from blocking implementation of targeted UN sanctions within
the European Union. (COMMENT: A final judgment in the "Kadi
II" case, currently before the lower court, should help
determine if such cautious optimism is warranted. END
COMMENT.)
BRUSSELS 00000219 003 OF 006
¶9. (C//NF) The possibility of administrative review applies
retroactively for anyone subject to EU counterterrorism
sanctions who requests it. Individuals and entities still
have only two months to challenge their initial listing
before the EU courts, but can submit "observations" and
request an administrative review of their designations at any
time. Internal EU review will incorporate those
observations, along with any information supplied by the UN
or EU Member States. The review will end when the EU
notifies the applicant of the reasons for its continued
designation. Staffers distinguished this "notification of
decision" from a point-by-point reply to observations offered
by the applicant. They also said that the results of EU
reviews would be presented to the UN for information purposes
only.
¶10. (C//NF) Despite the lack of clarity concerning other
sanctions programs, EU staffers are confident that their
autonomous terrorism sanctions (UNSCR 1373) regime remains on
solid legal footing. They cited the case of
Mujahideen-e-Khalq (MEK, known within the EU as "OMPI," the
French acronym for the People's Mujahedin of Iran), which
successfully challenged its designation as a terrorist
organization in the European Union (See also REF C). In its
proceedings, the lower court of the ECJ annulled OMPI's
designation, but affirmed that internal EU due process
mechanisms were sound. Staffers noted that the EU had
drafted its own statement of case against OMPI and was thus
not completely reliant upon UN-derived information. (NOTE:
France is appealing before the high court the lower court's
decision annulling the OMPI designation. END NOTE.)
------------------------------------
DATA PRIVACY OVERSIGHT AND SANCTIONS
------------------------------------
¶11. (C//NF) The European Data Protection Supervisor ("EDPS")
has issued a legal opinion concerning the EU's latest UN
terrorism sanctions (UNSCR 1267) implementing Regulation. In
his non-binding opinion, the EDPS asserts the authority to
access all personal data, including classified information,
processed by the EU institutions. With respect to targeted
sanctions, the EDPS states that a security clearance and
proper handling procedures for sensitive information may be
required so that he and the European Court of Justice may
"review whether a fair balance is struck between the need to
combat international terrorism and the protection of
fundamental rights." EU staffers acknowledged that EDPS
oversight authority was not restricted by law but stressed
that the EU Council was not obliged to recognize his legal
opinions. (COMMENT: The European Parliament, which plans to
sue the Council and Commission to obtain a greater role in
targeted sanctions implementation, will likely seize upon the
EDPS legal opinion in its quest for stronger data privacy
protection standards. END COMMENT.)
-----------
NORTH KOREA
-----------
¶12. (C//NF) On DPRK sanctions, EU staffers said that efforts
were underway to facilitate EU implementation of measures for
which Member States retain competence, including: a
correspondence table for various customs authorities; a new
approach to dual-use items (we assume this to mean dual-use
Regulation 428/2009); a clause requiring Member States to
inform the Commission of steps taken to implement DPRK
sanctions; and certain non-binding UN provisions that the EU
has rendered binding within its own territory (e.g.,
restrictions on shipping, specialized training, and financial
services).
¶13. (C//NF) Given the possibility of court challenges to
DPRK sanctions measures, EU staffers expressed concern over
the lack of narrative summaries emanating from the UN.
BRUSSELS 00000219 004.2 OF 006
Statements of case against DPRK targets need not be very
specific, they suggested, since these are being designated
largely for their links to a state and jurisdiction. But "a
reason would be helpful" vis--vis EU courts, one Council
lawyer explained, even if these do not require due process as
practiced in the counterterrorism context.
¶14. (C//NF) Commission sanctions staffer Stephane Chardon
indicated that provisions for enhanced vigilance in the
financial sector were drawn from the EU's latest anti-money
laundering ("AML/CFT") Directive. Although DPRK sanctions
and proliferation finance issues differ somewhat from the
vulnerabilities addressed by AML/CFT Directives, the
Commission is attempting to "transpose" other areas of its
technical expertise into sanctions mechanisms. According to
Chardon, some individual Member States have given further
guidance to their financial institutions with respect to DPRK
sanctions implementation. (COMMENT: The EU continues to
resist issuing an EU-wide advisory, however. END COMMENT.)
--------
ZIMBABWE
--------
¶15. (C//NF) Spain indicated that a new EU Council Decision
(FKA Common Position) on Zimbabwe would be finalized over the
following days and described forthcoming changes to the EU's
sanctions program. (NOTE: The Common Position underlying
that program was due to expire February 20, prompting the EU
to review/renew existing measures. See REF D for information
about the eventual rollover. END NOTE.) After intense
debate and compromise, Perm Rep officials from the EU
Council's Africa Working Group (COAFR) have agreed to remove
six (6) individuals and nine (9) entities from the EU's
designation list. The individuals include one person who has
left the GoZ, four who are now deceased, and one, Thamer Al
Shanfari, whom the EU has assessed no longer meets
designation criteria. Eight of the entities are Zimbabwean
parastatals that were designated by the EU on January 27,
2009, but which have been judged, based on reporting from EU
Member State missions in Harare, to be under control of the
Zimbabwean finance ministry and thus de-linked from ZANU-PF.
Apart from these de-listings, all EU measures would be
renewed for twelve months, despite a strong preference for a
six-month rollover among some Member States.
¶16. (C//NF) The U.S. delegation informed EU counterparts
that parastatal designations were assessed by the USG to be a
significant leverage point vis-a-vis Robert Mugabe and
ZANU-PF, and cautioned that the de-listing of these entities
would most likely diminish EU leverage with respect to the
Zimbabwean regime.
¶17. (C//NF) U.S. officials also emphasized the need for
transatlantic political unity on Zimbabwe, in particular
since that country is not subject to UN sanctions. EU
staffers and the Spanish Presidency then previewed the draft
public "conclusions" that would accompany the new Council
Decision. These would state firstly that sanctions were
still appropriate and were being renewed due to insufficient
political progress in Zimbabwe. Staffers were adamant that
select de-liQings did not refute this statement and that
signs of dynamism in the EU program would encourage and
empower the MDC. They nonetheless agreed to avoid public
statements that could undermine USG political messaging. The
de-listings would thus be treated as a group and in generic
terms in secondary "conclusions."
-----
BURMA
-----
¶18. (C//NF) EU sanctions against Burma are due to expire on
April 30. Spain had not yet begun work on a renewal Council
Decision, nor had it received draft text from EU Member
States or institutions. None of our interlocutors had a
BRUSSELS 00000219 005.2 OF 006
clear sense of the political direction among Member States,
but all agreed that major changes to the EU program were
unlikely in the immediate future. EU sanctions against Burma
are comparatively complex, and new measures were instituted
as recently as August 2009. Spain expects to initiate the
rollover process with a relatively standard 2-month lead time
in case of unforeseen complications during internal
negotiations. An anticipated EU official visit to Burma may
not happen before the end of April and should not conflict
with EU sanctions, by which Member States have suspended all
high-level bilateral engagement with the GoB. The EU visit
will most likely take place at the Director level.
¶19. (C//NF) EU staffers were dismissive when pressed about
their and Member States' implementation of existing
prohibitions on certain Burmese exports. "If Thailand won't
act, it's hard to do anything," one staffer lamented.
Another acknowledged that Burma engaged in only a small
percentage of its total trade with the U.S. and EU; Western
import restrictions could therefore be only minimally
effective at best.
--------------------------------------------- -----
ERITREA, SOMALIA, AND MORE ON DUE PROCESS VARIANCE
--------------------------------------------- -----
¶20. (C//NF) Council Secretariat sanctions staffer Francesco
Fini called the due process elements of UNSCR 1907,
concerning Eritrea, "weak" when compared to other sanctions
programs. He then asked if this was because the UN was
targeting a political regime. Fini sees a pattern whereby
different standards/norms of due process appear, depending on
the focus of a sanctions program. In his view, programs
focused on non-state actors and individuals unaffiliated with
political regimes, such as DRC sanctions, tend to provide
robust due process elements. Conversely, programs targeting
state actors and individual political elites offer few
procedural safeguards. While these trends may seem
coincidental, they are important for EU institutions, which
are increasingly wary of court challenges. "We will want to
know, what is the scope of due process to apply" in the
context of Eritrea sanctions, Fini informed the delegation.
¶21. (C//NF) EU staffers were keen to know when designations
would be finalized in the UN/Somalia sanctions committee.
The EU has not yet passed a Regulation to implement its
Somalia sanctions Common Position (2009/138/CFSP of 16
February 2009) and is therefore unprepared for a roll-out of
UN measures. Staffers expect the Regulation, a strict
implementation of UNSCR 1844, to be ready by the end of
February.
¶22. (C//NF) Fini again raised the due process issue with
respect to targeted Somalia sanctions. He noted that the
procedural safeguards found in UNSCR 1844 came more or less
directly from UNSCR 1822 concerning Al-Qaeda and the Taliban.
Fini asked iQ3QEce'Ksthe EDPS states that a security clearance and
proper handling procedures for sensitive information may be
required so that he and the European Court of Justice may
"review whether a fair balance is struck between the need to
combat international terrorism and the protection of
fundamental rights." EU staffers acknowledged that EDPS
oversight authority was not restricted by law but stressed
that the EU Council was not obliged to recognize his legal
opinions. (COMMENT: The European Parliament, which plans to
sue the Council and Commission to obtain a greater role in
targeted sanctions implementation, will likely seize upon the
EDPS legal opinion in its quest for stronger data privacy
protection standards. END COMMENT.)
-----------
NORTH KOREA
-----------
¶12. (C//NF) On DPRK sanctions, EU staffers said that efforts
were underway to facilitate EU implementation of measures for
which Member States retain competence, including: a
correspondence table for various customs authorities; a new
approach to dual-use items (we assume this to mean dual-use
Regulation 428/2009); a clause requiring Member States to
inform the Commission of steps taken to implement DPRK
sanctions; and certain non-binding UN provisions that the EU
has rendered binding within its own territory (e.g.,
restrictions on shipping, specialized training, and financial
services).
¶13. (C//NF) Given the possibility of court challenges to
DPRK sanctions measures, EU staffers expressed concern over
the lack of narrative summaries emanating from the UN.
BRUSSELS 00000219 006 OF 006
.